Orissa RTI (Amendment) Rules
The government under section 27 of the RTI Act, 2005 is authorised to make rules for
implementation of the Act. Orissa RTI rules, 2005 were notified on October 1 st, 2005.
The government is initiating an amendment to Orissa RTI rules, 2005 for which it has
formed a committee under the chairmanship of Shri R.N. Dash commissioner cum
secretary to the government. Committee has given certain recommendations to amend
Orissa RTI rules, 2005 and also Orissa Information Commission (Appeal procedure) rules,
2006. It is positive that committee has recommended introduction of other modes of
payment of fees apart from cash, treasury challan and court fee stamp. The committee
has also taken due care of applicants who require information pertaining to life and
liberty. In the light of these recommendations it is important that the government
addresses the following problems and incorporate the recommendations in the
upcoming amendment bill.
Application process:
The Rules requires a citizen to file an application in Form-A accompanied by an
application fee of Rs 10 by way of treasury Challan, cash, bank draft, Indian postal order
or make e-payments. Public Information Officer or any other officer authorized by him
shall furnish the acknowledgement in Form B and will also inform the applicant about
the additional fee. The applicant has to then deposit the additional fee within 15 days
from the date of intimation failing which the application shall stand rejected. The PIO
will give the reasons for rejection of application in Form C. If the applicant is not
satisfied by the order of PIO, he/she can file a First Appeal in Form D and Second Appeal
in Form E.
Problem related to application process:
1) Compulsory use of Form A: The Rules require that all applicants use Form ‘A’
compulsorily for filing information requests. This insistence can create problems
under certain circumstances. If pre-printed application forms are not easily
available, a citizen may simply not be allowed to submit an information request.
Making the use of application forms compulsory is an unnecessary restriction
imposed on potential information seekers. Plain paper applications must also be
allowed so long as they contain the minimum contents prescribed under S.6 of the
RTI Act 2005. The Government of India has not prescribed any application form till
date. This provision should be amended and writing RTI application on a plain paper
should be encouraged.
Recommendation # 1
In Rule 4(1) word “Form A” should be replaced with “plain paper”.
2) Application shall deemed to be rejected if additional fee is not paid within 15 days:
The Rule 4(3) reads that “the applicant may deposit the said amount within a period
of fifteen days from the date of the receipt of such information failing which the
application shall stand rejected”. Therefore rejection makes it obvious that the
applicant has to file in fresh application. The Rules create a new ground for rejection
of RTI applications. If the applicant does not deposit the additional fee within 15
days of the PIO’s intimation then the application will be rejected. According to S.7
(1) of the RTI Act an information request may be rejected only for reasons
mentioned under sections 8 and 9. No other reason is valid. This Rule effectively
nullifies the right of the applicant to seek fee review before the designated appellate
authority under section 7(3) (b) read with section 19(1) of the RTI Act. The appellate
authority has a maximum of 45 days within which to make a decision on the fee
review. This Rule empowers the PIO to reject the application even as the fee-related
matter is under consideration before a higher authority. This creates an absurd
situation. This Rule is clearly in excess of the powers given to the government of
Orissa under section 27 of the RTI Act.
Recommendation # 2
Rule 4(3) may be deleted.
3) Identity to be disclosed by the applicant. In Rule 5(1) and (2) point IV of Form C i.e.
Intimation of rejection, requires an applicant to provide a documentary proof of
identity else the application may stand rejected. The PIO can reject the application if
he is unsatisfied with the proof of identity of the applicant. An unsatisfactory proof
of identity does not give authority to a PIO to reject an application until or unless it
falls under the category of exempted information laid in section 8 and 9 of the Act.
According to section 6(2) of RTI Act an applicant making a request for information
shall not be required to give any other personal details except those that may be
necessary for contacting him. In case of providing a proof of citizenship the onus to
prove that the denial of a request on the ground of citizen ship, has to be justified by
the PIO by establishing that the applicant is not a citizen of India. In one of the
decision by CIC in Chanderkant Jamnadas Karira v. Vice President’s Secretariat
(CIC/WB/C/2009/900352) dated 10.1.2010 The Central information commission
decided that “only when there is a reasonable doubt as to the citizenship of the
applicant that the PIO may seek proof of citizenship”. The applicant has no role other
than asserting himself that he is a citizen India. Again in A.N. Prasad v. Indian Army
(CIC/SM/C/2009/000405/LS) dated 2.2.2010 The Central Information Commission
stated that many of the information seekers who are in rural areas may not have any
proof of identity, and this kind of provision would deprive these individual of their
statutory right. Hence this requirement is against the spirit of the Act.
Recommendation # 3
Point IV in Form C as recommended by the committee may be deleted
4) Rule 5(1) Form C point VI is ground for rejection of application if the information
sought is prohibited as per section 24(4) of the act. Rule 5(1) and (2) point VI of
Form C i.e. Intimation of rejection, the PIO shall intimate rejection on the ground
that it falls under Section 24(4) of the GOI-RTI Act pertaining to exempted
organizations category. Although the RTI is clear on the point that rejection can only
be under Section 8 & 9 of the Act but PIO can deny the applicant by citing under
which organisation a particular information pertains. The proviso to section 24(4)
states that where it is a matter of human rights violation such an organisation shall
not be exempted. The rules must mention the number of organization exempted
and under what organization a particular information has been denied.
Recommendation # 4
(i)
In point VI of Form C a list of exempted organisation should be inserted.
(ii)
In Rule 5 (1) a proviso should be inserted stating that “where the information
falls under point VI of Form C, it shall not be denied if it is a matter of human
rights violation and PIO must get an order from the Information Commission
and attach it along with the rejection form”.
5) No provision of transfer: The rule notified by Orissa Government does not contain
any provision for transfer of application. Although nowhere the rules state that if the
information does not fall within the jurisdiction of authorized person the application
is returned back, but the procedure as laid down in the RTI Act should be clarified.
As according to S.6 (3) of the Central Act the application should be transferred to the
authorized person and notice should be given to the applicant. It is recommended
that a provision specifying transfer of application should be incorporated.
Recommendation # 5
Rule 2A should be inserted stating that “where an application is made to a public
authority requesting for an information which is held by another public authority or the
subject matter is closely connected with the functions of another public authority, the
public authority shall transfer the application or such part application within 5 days from
the date of receipt of application and inform the applicant immediately about such
transfer.”
6) No provision of providing information within 48 hours for information concerning
life and liberty of a person. The Rules notified by the Orissa Government do not
specify that information should be provided within 48 hours if it pertains to life and
liberty of a person. Proviso to section 7 (1) of the Act states that a person seeking
information concerning life and liberty shall be provided with the requested
information within 48 hours of the request so made. The committee has
recommended that matters of life and liberty can be taken on priority after the
commission has granted a leave is incorporated in OIC (Appeals and procedure) 2006
by inserting rule 7A and rule 6(3) (a).
Recommendation # 6
Rule 4 (4) should be inserted in Orissa RTI (Amended) Rules, 2005 stating that” where the
information sought for concerns life and liberty of a person, the same shall be provided
within forty-eight hours from the date of receipt of such request and all fee related
transactions by the Public Information Officer shall be completed within such time
period“.
7) PIO to assist unlettered applicants: It is the duty of the PIO to assist unlettered
citizens in writing their application; this is provided in section 5(3) of the RTI Act
hence the Orissa RTI rules should incorporate this feature also.
Recommendation # 7
A proviso to Rule 4 (2) should be inserted stating that “the public information officer
dealing with the request from persons seeking information shall render reasonable
assistance to the persons seeking such information.
Fee related provision:
Application Fee:
Rs 10
Additional Fee:
Photocopying
Rs 2 per page
Inspection
No fee for the first hour & Rs. 5.00 for each 15 minutes.
Information in printed
form
Price of the publication
First Appeal Rs 20 per appeal; Second appeal Rs 25 per
Appeal Fee:
appeal
Treasury challan/ cash/money order/ Indian postal order/
Mode of payment:
bank draft/ e- payments
Fee related problem:
1) Fee is charged for filing an appeal: The Rules require every appellant to pay Rs 20
and Rs 25 for filing and appeal to an appellate authority and The Orissa Information
Commission respectively against a decision of the PIO. Nowhere in the RTI Act is an
appellant required to pay fees for filing appeals. Neither the RTI (Regulation of Fee
and Cost) Amendment Rules, 2006 nor the Central Information Commission (Appeals
Procedure) Rules, 2005 require the payment of appeals fees. The rules must not be
used to place a burden on the applicant. The requirement of paying appeals fee in
Orissa is clearly in excess of the powers given to the government under section 27of
the RTI Act.
Recommendation # 8
(i)
Rule 7(2) may be deleted.
(ii)
In Rule 7(4) the following may be deleted:
“The appeal preferred under sub-rules (1) and (3), if not accompanied with the
required fee, shall be rejected by the concerned Appellate Authority...” should be
deleted.
2) Additional fee for BPL applicants. The rule does not specifically mention that the
applicant who is a BLP is required to pay additional fee. This might create confusion
amongst the PIOs whether to charge or not to charge an additional fee from a BPL
applicant. The RTI Act proviso to Section 7(5) clearly states that additional fee
charged should be reasonable and no fee should be charged to a BPL applicant, since
section 7(5) exempts the BPL persons from all the 3 kinds of fees i.e. application fee,
cost of providing information and fee for the electronic or print media, The Orissa
RTI (Amendment) Rules must specify this feature.
Recommendation # 9
Proviso to rule 4 (2) should be inserted stating “provided no such additional fee shall
be charged from the persons who are of below poverty line”.
Others:
8) Calculating the cost of damages. Cost of damage caused to public property during
sample collection is to be collected from the applicant. This provision is absurd in the
manner that collecting a sample of material is the responsibility of the PIO, and it is
unethical to incur cost of damage from applicant who is not at fault. Secondly it is in
violation of the RTI-Act which nowhere states that the applicant be made liable for
the damages incurred by the PIO while collecting the sample. Section 7(9) of the RTI
Act states that the information shall be provided in the form in which it is sought
unless it would disproportionately divert the resources of public authority or is
detrimental to the safety and preservation is in question. To avail this provision the
public authority has to satisfy two conditions i.e. firstly providing the information
should not be expensive that it diverts the resources of public authority; secondly it
must not harm or damage the record. Hence the second part of this section is clear
on the point that the public authority is not authorised to part with the information
if it is inflicting any harm on the record or the information. Knowingly providing
information which can damage the record is illegal and the cost of damages
occurring due to the fault of PIO cannot be incurred from the applicant’s pocket.
Recommendation # 10
Rule 10 may be deleted
9) Time period of disposal of appeal absent in OIC (Appeals and procedure) 2006. The
information commission shall decide on the appeal, but the rules do not mention
anywhere that the Commission is time bound to give decision. Therefore it is
pertinent that a clause in the OIC (Appeals and procedure) 2006 rules should be
added wherein the time limit for the deciding upon an appeal should be prescribed.
This is applicable in the state of Madhya Pradesh and also in state of Jammu and
Kashmir. The M.P. RTI (Fee and Appeal) Rules, 2005 has prescribed a time period of
180 days within which the commission has to dispose of the matter. Similarly Rule
16(11) of the Jammu and Kashmir RTI Rules 2009 states that the state Commission
shall decide an appeal within 60 days which can be extended up to 120 days.
Recommendation # 11
Rule 10 (A) should be inserted to Orissa Information Commission (Appeals and
procedure) 2006 and worded as ” The State Information Commission shall within sixty
days from the receipt of appeal decide the appeal in accordance with such procedure as
may be prescribed.
Provided that the Information Commission may decide an appeal within such extended
period not exceeding one hundred and twenty days from the date of filing”.